Beware of 'Drive-By' Accessibility Testing
In this month’s lesson, the Coach aims to raise your awareness about “drive-by” accessibility testing. Even if you’ve never heard of it, drive-by accessibility testing could uncover a potentially expensive source of liability lurking in plain sight at your community.
Fair housing expert Kathi Williams explains that drive-by accessibility testing occurs when a tester drives by a housing community (or a public establishment) and determines that the entrance to the building or the parking lot doesn’t meet applicable accessibility standards. In most cases, she points out, the tester doesn’t even need to get out of the car to measure anything—it’s an obvious violation to someone who knows the rules.
No matter how it’s discovered, claims involving violations of federal accessibility requirements are notoriously difficult and expensive to resolve, Williams warns. A violation uncovered at one community can quickly expand to involve an investigation into accessibility at all communities recently constructed by the same developer.
Example: In August 2020, the owners, developers, and builders of 82 multifamily housing communities in 13 states agreed to make extensive modifications to their properties and pay $475,000 to resolve a federal lawsuit alleging that they violated federal law by designing and constructing apartment complexes that are inaccessible to persons with disabilities.
The settlement involves housing communities in Illinois, Indiana, Iowa, Kansas, Kentucky, Missouri, North Carolina, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, and West Virginia. The communities, many of which were built with financial assistance from the federal government’s Low-Income Housing Tax Credit program or other federal programs, have a combined total of more than 3,000 units that are required to have accessible features.
The settlement requires the defendants to take extensive corrective actions to make the complexes accessible to persons with disabilities. These include replacing excessively sloped portions of sidewalks, installing properly sloped curb ramps and walkways to allow persons with disabilities to access units from sidewalks and parking areas, providing sufficient room for wheelchair users in bathrooms and kitchens, and removing accessibility barriers in public and common use areas at the complexes. The defendants also agreed to establish a $400,000 settlement fund and pay $75,000 in civil penalties.
“For nearly three decades, federal law has mandated that new multifamily housing be accessible to people with disabilities,” Assistant Attorney General Eric Dreiband of the Civil Rights Division said in a statement. “And yet, after all these years, some in the housing industry continue to ignore their legal obligations by building inaccessible properties that deny individuals with disabilities the opportunity to live in and enjoy housing on equal terms with non-disabled tenants. There simply is no excuse for these violations of longstanding federal law. This lawsuit and its resolution should send an unmistakable message that this Department will work tirelessly to pursue those who deny individuals with disabilities their federally protected right to accessible housing.”
Meanwhile, you should know about a new high-tech form of ‘drive-by’ testing that doesn’t even require testers to leave the house. These testers are surfing the Internet to check for web accessibility—barriers to access on the community’s website to people with vision, hearing, or other impairments. In recent years, these claims have resulted in thousands of lawsuits aimed at the business community, but the housing industry could become the next target of web accessibility claims.
In this lesson, we’ll review the applicable law and offer eight rules to help your community avoid the pitfalls that often trigger this potentially expensive source of liability. Then you can take the Coach’s Quiz to see how much you’ve learned.
WHAT DOES THE LAW SAY?
The federal Fair Housing Act (FHA), which bans housing discrimination based on disability, requires that multifamily housing built since the early ’90s contain accessible features for people with disabilities. Failure to comply with the FHA’s design and construction standards is a form of disability discrimination, according to joint HUD-DOJ guidance on accessibility.
The FHA’s design and construction rules generally apply to multifamily communities consisting of four or more units intended for first occupancy on or after March 13, 1991. To satisfy the FHA’s accessibility requirements, covered multifamily communities must meet seven design and construction requirements:
- An accessible entrance on an accessible route;
- Accessible common and public use areas;
- Doors sufficiently wide to accommodate wheelchairs;
- Accessible routes into and through each dwelling;
- Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;
- Reinforcements in bathroom walls to allow later installation of grab bars; and
- Usable kitchens and bathrooms such that an individual using a wheelchair can maneuver about and use the space.
These requirements apply to all public and common use areas—and to all rental units, if the building has an elevator. In buildings without an elevator, the standards apply only to ground-floor units.
The FHA doesn’t include technical specifications that would meet the design and construction requirements or provide one national uniform set of accessibility standards. Instead, HUD has approved certain “safe harbors,” which are objective and recognized accessibility standards. As long as the community satisfies the technical requirements under one of these safe harbors, it’s deemed to meet the FHA’s design and construction requirements.
Coach’s Tip: For more information on technical requirements under the FHA’s design and construction standards, visit the Fair Housing Act Accessibility FIRST website, https://fairhousingfirst.org, the HUD-sponsored initiative to promote compliance with the FHA design and construction requirements.
HUD Proposes New Rule for Complying with FHA’s Design & Construction Requirements
In January 2020, HUD announced a proposed rule that would recognize additional sets of standards and model building code editions that, when followed in the design and construction of new multifamily housing, will ensure compliance with the FHA’s accessibility requirements.
Under the proposed rule, HUD will incorporate more recent editions of currently recognized safe harbor standards and model building codes. HUD will amend its regulations to include the 2009 edition standards of the American National Standards Institute (ANSI), as well as the 2009, 2012, 2015, and 2018 editions of the International Building Code, as safe harbors for compliance with the accessibility requirements of the FHA.
States and local communities across the nation often adopt or adapt model building codes for enforcement within their jurisdictions to ensure up-to-date, sound standards for construction. When fully adopting one of HUD’s “safe harbors,” state and local communities are assured that their building codes incorporate the requirements for accessible features in new multifamily housing buildings under the Fair Housing Act.
“HUD is committed to supporting states, local communities, and the housing industry at large, in their efforts to build housing that is accessible to persons with disabilities,” HUD Secretary Ben Carson said in a statement. “HUD is happy to propose these additional safe harbors as a way to further encourage the development of housing that is open to all.”
8 RULES FOR COMPLYING WITH FEDERAL ACCESSIBILITY REQUIREMENTS
Rule #1: Learn About Applicable Accessibility Laws
In all likelihood, your community may be subject to several federal, state, and local laws—many of which have different accessibility requirements. Williams says that your front office staff don’t have to be experts in the accessibility standards, but they should be generally familiar with the property and the accessibility laws that may apply.
If your community was built after March 1991, then the FHA generally requires accessible features for people with disabilities. Among other things, the FHA requires accessible common areas in buildings and developments, usable bathrooms and kitchens, wider doors, and environmental controls that can be reached by persons who use wheelchairs.
Meanwhile, federally assisted housing communities must comply with the accessibility provisions of Section 504 of the Rehabilitation Act of 1973. If the community was built for first occupancy after March 1991 and federal funding was involved, then both Section 504 and the FHA apply, so the accessibility standards under both laws must be used, according to the joint DOJ/HUD guidance on accessibility.
The same goes for the Americans with Disabilities Act (ADA)—though its reach is limited to “places of public accommodation” in conventional housing communities. In general, that means places within your community that are open to the public, including your business office and commercial enterprises, such as a convenience store located within your community. Common use areas reserved for your residents and their guests are covered under the FHA—but not the ADA—according to the accessibility guidance.
Coach’s Tip: Many communities are subject to state or local building codes, which may require greater accessibility than the FHA. The accessibility guidance explains that the FHA doesn’t reduce the requirements of state or local codes that require greater accessibility than the FHA, so the state or local building code’s greater accessibility must be provided. If the state or local code requires less accessibility than the act, however, then communities are still bound to comply with the FHA’s design and construction standards.
Rule #2: Ensure Your Leasing Office Is Accessible
Take all necessary steps to ensure your leasing office is accessible to individuals with disabilities. It’ll be the first stop for “drive-by” testers, who don’t even have to get out of the car to observe accessibility violations, such as steps to the entrance or inadequate accessible parking at your leasing office. An obvious violation is a red flag, indicating that there are likely many more accessibility barriers in other parts of the community, warns Williams.
Rental offices and other public and common use areas must be accessible if they serve multifamily communities that are subject to the FHA’s design and construction standards, according to the accessibility guidance. And because it’s open to the public, a community’s leasing office is subject to the ADA’s accessibility requirements. The ADA requires, among other things, that places of public accommodation, such as rental offices at multifamily housing complexes designed and constructed for first occupancy after Jan. 26, 1993, be accessible to persons with disabilities.
Example: In December 2019, a multifamily housing developer and a site engineer agreed to settle a federal lawsuit alleging they built an eight-building addition and associated rental office at a Texas community that were inaccessible to individuals with disabilities. Among other things, the complaint alleged that they designed and built places of public accommodation, including the rental office for multifamily dwellings located at the complex, without ensuring that they were readily accessible to people with disabilities as required by the ADA.
The settlement required the defendants to remove steps to provide an accessible route through the property, construct a new building containing 24 FHA compliant units, eight of which will contain super-accessible features, and construct a new accessible leasing office. The defendants also agreed to establish a $75,000 settlement fund for people allegedly harmed by the lack of accessible features at the community.
Check with experts for technical requirements, but at a minimum, you should ensure that there are no barriers to the entrance to the leasing office. Be sure that there’s also adequate accessible parking in the leasing office’s parking lot—another place that drive-by testers are likely to check, Williams says. You must ensure that there’s at least one publicly accessible parking space; if there’s only one, it must be van accessible—which means a wider space with signage about a foot higher than the standard sign for accessible parking, she explains.
Rule #3: Provide an Accessible Building Entrance on an Accessible Route
Drive-by testers are likely to look at the building’s entrance. The FHA’s design and construction standards require that all covered multifamily dwellings have at least one accessible building entrance on an accessible route, unless it’s impractical to do so because of the terrain or unusual characteristics of the site.
Individuals with disabilities must be able to enter the building through the same entrance used by everyone else. The accessibility guidance warns against building designs that require individuals with disabilities to use a different entrance than the entrance used by people without disabilities.
An accessible route means a continuous, unobstructed path connecting accessible elements and spaces within a building or within a site that can be negotiated by a person using a wheelchair, and that is also safe for and usable by people with other disabilities, according to the guidance. That route must connect to vehicular and pedestrian arrival points, such as accessible parking lots and public streets and sidewalks, to the entrances and covered building.
Additional entrances to the building also must be accessible if they are public or common use areas, according to the guidance. If, for example, a secondary entrance at the back of the building containing units leads to the clubhouse or parking, then both that entrance and the primary entrance must be accessible.
Rule #4: Ensure Accessibility to Public and Common Use Areas
Depending on the circumstances, testers may also take a look at accessibility in public and common use areas. Public and common use areas include rental and management offices, model units, parking lots, storage areas, indoor and outdoor recreational areas, lobbies, mailrooms and mailboxes, and laundry areas. Among other things, the FHA’s design and construction standards require that all doors that allow passage into public and common use areas be wide enough to allow passage by people who use wheelchairs, scooters, or walkers.
The FHA’s design standards also establish minimal levels for accessible parking for residents and visitors. If parking is provided at the site, the guidelines call for enough accessible parking on a wheelchair-accessible route to accommodate residents of at least 2 percent of the dwelling units. The guidelines also call for accessible parking at facilities (such as swimming pools) that serve an accessible building.
Rule #5: Provide Accessible Entrances and Routes Into and Through Covered Units
In covered communities, all units in elevator buildings—and ground-floor units in non-elevator buildings—must satisfy the FHA’s design and construction requirements. The rules require doorways into and through covered units to be wide enough to accommodate a wheelchair. The rules also require an accessible route into and through each covered dwelling.
The primary entrance to covered units must be readily accessible to and useable by persons with disabilities. The accessibility guidance explains that the primary entrance is part of the public and common use areas because it’s used by residents, guests, and members of the public for the purpose of entering the dwelling or building.
Example: In August 2020, a court granted partial judgment to fair housing advocates in a lawsuit against various entities and individuals responsible for the design and construction of a senior housing development in Ohio. At issue was whether, under the FHA’s accessibility requirements for newly constructed multifamily dwellings, the front door and walkway leading to a covered unit are required to be accessible to persons with disabilities.
The defendants had argued that their only obligation was to provide an accessible route into the unit, which, they alleged, they had done by providing an accessible route through the garage. In a statement of interest filed in the case, the Justice Department argued that, under the FHA, the front doors and walkways are “public use and common use portions” of covered dwellings and therefore required to be accessible, regardless whether there is another accessible route into the unit.
The court agreed, ruling that the failure to provide “unimpeded access” to the front door to persons who use wheelchairs, including not just those who live in the unit but also a “neighbor, friend, or family member, a political candidate, or a repairman,” is “in effect, to send them away as if unwelcome”—precisely the discrimination the FHA forbids [Ability Center v. Moline Builders, Ohio, August 2020].
Rule #6: Make Sure Covered Units Meet FHA Accessibility Requirements
The FHA’s design and construction standards also require certain accessibility features inside covered units, so that they may be used by individuals in wheelchairs. These rules require light switches, electrical outlets, thermostats, and other environmental controls to be in accessible locations. Common violations occur when outlets are placed too low and switches for thermostats and other environmental switches are placed too high.
The FHA also requires bathrooms and kitchens in those units to be “usable” by individuals with disabilities. In general, that means that they must be designed and constructed so an individual in a wheelchair can maneuver about the space and use fixtures and appliances.
Finally, the rules require reinforcements in bathroom walls in covered units so that grab bars may be added when needed around toilets, tubs, or showers. The law doesn’t require the installation of grab bars in bathrooms.
Rule #7: Consider Reasonable Modification Requests
Be careful about how you respond to residents who ask for reasonable modifications to address accessibility barriers, warns Williams. Examples of reasonable modifications include widening doorways to make rooms more accessible for people in wheelchairs, installing grab bars in bathrooms, lowering kitchen countertops to a height suitable for people in wheelchairs, adding a ramp to make a primary entrance accessible for people in wheelchairs, or altering a walkway to provide access to a public or common use area.
The FHA requires communities to permit an applicant or resident with a disability to make reasonable modifications to the interior or exterior of his unit and common areas if necessary to afford him full enjoyment of the community. Under the FHA, conventional multifamily housing communities must permit reasonable modifications, but the resident is responsible for paying the costs associated with the requested modifications.
It’s a different story, however, if the request involves features of accessible design that should have been included when the community was originally constructed. If the request involves a structural change to a unit or common area required under the FHA’s design and construction standards, then the community is responsible for providing and paying for those requested structural changes, according to joint DOJ-HUD guidance on reasonable modifications.
Communities should promptly address resident complaints about accessibility barriers, says Williams. If, for example, a resident says she can’t get onto her patio because of a step, then the community should fix the problem—without cost to the resident. Williams warns that you shouldn’t tell the resident that she has to pay for the modification unless you’re absolutely sure that the FHA’s design and construction rules don’t apply. It’s often far less expensive to make the problem go away by fixing it, rather than risk a fair housing complaint, which could lead to a wide-ranging investigation into your community’s compliance with accessibility requirements.
Coach’s Tip: Under Section 504, federally assisted housing communities may be required to make and pay for structural changes to units and common areas as a reasonable accommodation for an individual with a disability.
Rule #8: Review Website for Accessibility Barriers
In recent years, businesses have been hit with hundreds of lawsuits over website accessibility under the ADA. In a nutshell, the ADA requires that public accommodations must be accessible to people with disabilities. Those filing lawsuits involving website accessibility take it a step further by alleging that these businesses violate the ADA because their websites aren’t accessible to people with visual, hearing, or other impairments.
Up to now, it’s been large retailers and other businesses with “deep pockets” who have faced web accessibility claims, but the multifamily industry should brace itself for this new form of “drive-by” accessibility testing. In these types of claims, it’s not the FHA, but the ADA that poses a potential source of liability. Williams explains that there’s nothing in the FHA that says that housing providers’ websites must be accessible.
But the ADA applies to public accommodations, which includes community leasing offices because they are open to the public. These days, community websites may provide the public with a great deal of information, including pricing information, floor plans, maps identifying the location of available units, photos or videos showing the interior of units, and other features of the community. Unless the website meets accessibility standards, this information may be inaccessible to individuals with vision, hearing, or other impairments—giving rise to a potential ADA claim.
Williams urges all businesses, including multifamily housing providers, to take this potential threat seriously. Unless you’ve already done so, Williams says that you should get a professional review of your website by someone knowledgeable about web accessibility. For large multifamily housing owners, the review should include not only the company’s website, but also each individual property’s website. To start, she says, you should get answers to these basic questions:
- Do you have audio content that is not accompanied by a text alternative or captioning? Such content is not accessible to persons with hearing impairments.
- Are links on your website signified by a different color text only—or are they also underlined? Links marked only by a change in the color of the text may be hard for users who are color blind or have other vision impairments to differentiate from non-linked text.
- Does your site have the option for text to be increased in size without losing content?
- Can the visitor use the keyboard to navigate if the visitor is not able to use a mouse due to Parkinson’s disease or other disability?
The Justice Department has long promised to issue ADA guidelines on website accessibility, but it’s unclear whether—or when—there will be any official government standards on website accessibility for businesses that are open to the public.
In the meantime, courts and businesses have turned to what’s become the industry standard—the Web Content Accessibility Guidelines 2.0 (WCAG 2.0). The WCAG 2.0 standards, published by a working group of experts, have been widely accepted as providing full and equal access to people with disabilities by a long list of countries, state and local governments, and companies. More information about the WCAG 2.0 standards is available at https://www.w3.org/WAI/standards-guidelines/wcag/.
Bill Aims to Make Websites More Accessible, End Predatory Lawsuits
In October 2020, Congressmen Lou Correa (D-CA) and Ted Budd (R-NC) introduced the bipartisan Online Accessibility Act, which would create guidance to help businesses ensure their website complies with the ADA. The lawmakers say that this bill (H.R. 8478) will increase website accessibility and reduce predatory lawsuits filed against businesses.
“A predictable regulatory environment is critical for small businesses. Unfortunately, when it comes to website compliance, these regulations aren’t clearly defined. This bill ensures that small businesses know what they need to do to be ADA compliant. It’s a simple, bipartisan, and common-sense solution that will put this problem behind us,” Rep. Correa said in a statement.
Rep. Budd said, “Last year, over 2,000 website accessibility lawsuits were filed by plaintiffs alleging that certain websites were not ADA compliant. This bill solves the problem by providing guidance to businesses on how to bring their websites into compliance. If our bill is passed, job-creators will be able to avoid costly lawsuits and be given a roadmap for how to help their disabled customers access online content.”
The full text of the bill is available here.
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|November 2020 Coach's Quiz